Maxim Stulov / Vedomosti

The Ministry of Justice does not see the need for additional legislative measures to protect businesses from pressure from law enforcement agencies: there are already enough of them. The Ministry wrote about this to the Association of Internet Trade Companies (AKIT), which addressed a letter to President Vladimir Putin in support of Baring Vostok founder Michael Calvey and the fund's employees.

Entrepreneurs are concerned about the increasingly active intervention of law enforcement agencies in civil disputes, so they asked the president to instruct them to prepare amendments to the legislation that would prohibit law enforcement agencies from doing so. The appeal was forwarded to the Ministry of Justice, which assured AKIT that "the current state economic policy of the Russian Federation is aimed at creating a favorable business climate," and entrepreneurs can now "count on additional guarantees of protection against unjustified criminal prosecution" (Vedomosti has reviewed a copy of the response).

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Thus, an accused or suspected of committing economic crimes cannot be taken into custody, and for illegally initiating a criminal case with the purpose of obstructing entrepreneurial activity, the investigator faces criminal liability, according to the response of the Ministry of Justice, signed by the deputy director of the department of criminal, administrative and procedural legislation Margarita Moskaleva. Liability for fraud occurs only in the case of deliberate failure to fulfill contractual obligations, the Ministry of Justice reminds, and, as the Supreme Court explained, strong evidence of intent is required.

The Ministry of Justice emphasizes that it is not authorized to evaluate the actions of law enforcement agencies and acts solely "in the order of information." The document is not an official explanation of the legislation and cannot be used as evidence, including in court, Moskaleva emphasizes.

Why all these measures failed in the Calvey case is not explained in the letter.

The defense cited Article 108 of the Criminal Procedure Code, which prohibits the detention of a person accused of fraud in the sphere of entrepreneurial activity, both when the court chose a preventive measure for Kalvi and in the appeal, says his lawyer Dmitry Savochkin. “We will continue to refer to this in all subsequent instances,” he says. “Our position is confirmed by the explanations of the Supreme Court Plenum’s resolution: we are talking specifically about entrepreneurship, when the accused are members of the company’s management bodies and exercise powers to manage this company. But the courts side with the investigation, whose position is as follows: activity aimed at the illegal seizure of property cannot be considered entrepreneurial by definition.”

It is unlikely that there is a need to change anything in the legislation, admits AKIT President Artem Sokolov. It is important that the provisions of the legislation are observed by the courts, he conveyed through a representative, the plenum of the Supreme Court gave the necessary explanations back in 2013. Vedomosti is waiting for a response from a representative of the Ministry of Justice to its request.

The ban on arrests of entrepreneurs is a norm that is practically not in effect, says the head of the Business Protection Association, Alexander Khurudzhi. At the end of March, business ombudsman Boris Titov sent a letter to the chairman of the Supreme Court, Vyacheslav Lebedev, asking him to explain why the judicial practice on arrests of entrepreneurs diverges from the decisions of the Supreme Court plenary sessions. The appeal includes court materials regarding a dozen businessmen. In particular, the ombudsman notes, in the decisions on choosing a preventive measure for the Baring Vostok executives, the court refused to recognize that the actions incriminated to them were committed in the sphere of entrepreneurial activity.

The rule that provides for criminal liability of an investigator for initiating a case for the purpose of obstructing business activity (Part 3 of Article 299 of the Criminal Code) is also not applied. It appeared in 2016 in response to complaints from businessmen to Putin. However, over the past two years, not a single such crime has been recorded, said Prosecutor General Yuri Chaika at the final board meeting of the supervisory agency in March.

It would be a huge step forward if the current legislation were simply implemented, says lawyer Vadim Klyuvgant. But this does not mean that the laws do not need systematic adjustment, he adds: constant and not very high-quality editing has led to a large number of contradictions, and the Ministry of Justice should have carried out an audit long ago. In his opinion, the most thoughtful reform was proposed by a group of experts in the Concept for Modernizing Criminal Legislation in the Economic Sphere, prepared in 2009-2010 on the instructions of President Dmitry Medvedev.

Ministry of Justice: Additional protection of businesses from pressure from security forces is not needed